State Rep. Joe Parisi and Sen. Pat Krietlow are now lining up cosponsors on a state Whistleblower Protection Act, affirming the right of journalists to protect confidential sources. Wisconsin is in a minority of states that do not have statutory shield law protections, although there have been some supportive court rulings. We urge advocates of openness and press freedom to energetically support this legislation.

Below is an e-mail from Parisi and Krietlow seeking cosponsors.

Senator Kreitlow and I are introducing a bill designed to protect a journalist’s right to keep confidential sources and material gathered during the reporting process privileged. The legislation is called the “Whistleblower Protection Act,” and has already been passed by 32 other states in some form. Congress is also currently deliberating whether to create such a protection under federal law.

Protecting confidential sources is essential to the public good and helps ensure that information that is needed to protect the public and guard against malfeasance can be make public. This legislation will provide judges guidelines for protecting a reporter’s first amendment right to gather information and protect sources that have blown the whistle on corruption, corporate malfeasance and violations of the public trust.

We drafted this bill after consultation with the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association and the Wisconsin Freedom of Information Council.

Existing case law offers judges some guidance on evidentiary rules regarding confidential sources. However, the case law parameters regarding these evidentiary rules need further clarification. There have been cases under current Wisconsin law where journalists have been required by trial courts to reveal confidential sources to litigants in an ongoing court case. While Wisconsin appellate courts have provided some protection to journalists, these decisions need to be codified and clarified to provide certainty in this area of the law.

For instance, in 1995, Milwaukee Magazine printed an investigative report on a Milwaukee dentist who was accused of bilking patients by pushing them to get unneeded and expensive treatments. A reporter for the magazine had interviewed several other dentists and dental experts, some of whom spoke on condition of anonymity. The accused dentist’s attorneys filed suit and demanded the names, notes and other material from the magazine’s interviews.

According to published accounts, the circuit court told the magazine to disclose these materials. However, the appeals court declared that journalists have greater protection than other witnesses from having to comply with discovery subpoenas. While the appellate court did provide some parameters for courts to use when considering whether to issue subpoenas for a journalists confidential sources, further clarification is needed for Wisconsin’s reporter shield laws.

This legislation would use the state appellate court’s ruling as a benchmark and offers judges guidance in interpreting the threshold for forcing reporters to reveal a confidential source and information gathered from a confidential source. The bill also provides qualified confidentiality for other news that a reporter gathers from non-confidential sources. A court could compel a journalist to disclose the identity of a non-confidential source or news that is gathered from a non-confidential source if certain guidelines are met (these guidelines are discussed in the bill summary).

Oftentimes the only way delicate information can be effectively disseminated is if a source can trust a reporter’s ability to maintain their confidentiality. Many confidential sources provide information at great risk to their careers, livelihood, and sometime even their physical safety. Journalists must be able to protect the confidentiality of those who come out of the shadows to expose public or private wrong-doing.